Opinion
No. 56494-3-I.
May 30, 2006.
Appeal from a judgment of the Superior Court for King County, No. 02-3-04992-7, Cheryl B. Carey, J., entered March 24, 2005.
Counsel for Appellant(s), Brendan Finucane Patrick, Attorney at Law, 800 5th Ave Ste 4100, Seattle, WA 98104-3100.
Counsel for Respondent(s), H. Michael Fields, Attorney at Law, 207 E Edgar St, Seattle, WA 98102-3108.
Reversed by unpublished per curiam opinion.
Absent entry of findings that there is no just reason for delay and directing entry of final judgment, an order adjudicating fewer than all claims does not terminate the action as to any claim. Moreover, the order is subject to revision at any time before entry of judgment adjudicating all claims. When a party presents evidence showing adequate cause for a hearing on the merits of a motion for modification of a parenting plan, the trial court must set the case for hearing.
CR 54(b).
Id.
RCW 26.09.260 and .270.
The order of dismissal entered on March 24, 2005 was subject to revision, and the trial court later found a substantial change in circumstances that established adequate cause for a hearing on Mark Greenshields' motion for modification. We reverse and remand for trial.
Leslie Hargis-Greenshields and Mark Greenshields obtained a dissolution of their marriage in 2003, when their daughter was five years old. The final parenting plan prescribed a detailed schedule of changes in the child's residence, with no two weeks in any four-week period that were alike. In addition, the parenting plan contained a hand-written item, initialed by both parents, stating that `Father shall provide after school care Monday — Thursday unless Mother is available.' The parenting plan was equally detailed in its description of the winter vacation schedule, dividing the vacation and alternating yearly between the parents.
At the time of the dissolution, Hargis-Greenshields' employment only allowed her to care for the child after school on a few occasions. The parents agreed that Hargis-Greenshields would have more days per month because Greenshields had the child after school four days a week. In September 2004, Hargis-Greenshields took a job that allowed her more flexibility, and she began to provide after school care each Monday and on three other days during October and November. This change resulted in conflict. In addition, the parents disagreed regarding restarting the weekend schedule at the end of winter break in 2005, resulting in further acrimony.
In February 2005, Greenshields filed a motion for a minor modification, proposing that Hargis-Greenshields provide after school care on Mondays and her weekends, and that he provide after school care on Tuesday through Thursday and his weekends. He also filed a motion for a temporary order modifying the parenting plan to provide for fewer transfers between households. Greenshields contended that Hargis-Greenshields' job changes, the resulting conflicts, and the harm to the child constituted a substantial change in circumstances, establishing adequate cause for a hearing on his motions. Hargis-Greenshields denied any substantial change in circumstances. Later in the month, Hargis-Greenshields filed a motion for clarification of the schedule after winter vacation.
A superior court commissioner considered both motions in the same hearing. In an order entered on February 22, the commissioner found that adequate cause had been established `based on [Hargis-Greenshields'] allegation that the plan must be changed to accommodate the holiday rotation.' The order denied Greenshields' motion for a temporary order, but stated that `all issues are open for trial on minor modification.' Both parties moved for revision.
On March 24, 2005, a superior court judge entered an order finding that Greenshields had failed to show adequate cause and denying his motion for minor modification. The order further stated that Hargis-Greenshields' motion for clarification did not require a finding of adequate cause, and set that motion for a hearing on additional evidence. In addition, the order addressed the issue of after school care, stating that Hargis-Greenshields could provide after school care on days that were not otherwise designated to Greenshields in the typewritten provisions of the parenting plan, if she was available and gave Greenshields notice.
At the hearing on April 28, 2005, the trial judge stated that she was revising the March 24 order only as to the second issue (that was raised by Hargis-Greenshields) by finding that there had been a substantial change in circumstances. Greenshields objected to limiting the finding of a change in circumstances to Hargis-Greenshields' issue. The judge responded that it would be tragic to have the case go to trial, and adopted Hargis-Greenshields' proposal for vacation time, stating that the previous order remained in effect as to the other issues. On June 20, 2005, the trial court entered findings of fact and conclusions of law in accordance with the oral decision at the April hearing.
Greenshields filed a notice of appeal on June 29, 2005. Hargis-Greenshields moves to dismiss the appeal as untimely.
TIMELINESS OF APPEAL
Hargis-Greenshields contends that the March 24 order dismissing Greenshields' motion for modification was a final order and that the delay of more than 30 days in filing Greenshields' appeal requires dismissal under RAP 5.2(a). We disagree.
CR 54(b) provides that:
When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross claim, or third party claim, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination in the judgment, supported by written findings, that there is no just reason for delay and upon an express direction for the entry of judgment.
(Emphasis added.)
The rule further states that:
In the absence of such findings, determination and direction, any order which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
Because the March 24 order only dismissed Greenshields' motion for modification but did not include an express determination supported by written findings that there was no just reason for delay and an express direction for the entry of judgment, it was not a final order. Under CR 54(b), it was subject to revision at the April hearing, when the findings of fact and conclusions of law adjudicating Hargis-Greenshields' claims were entered. Greenshields' notice of appeal was filed within 30 days after entry of the findings of fact and conclusions of law. That notice brought up for review both the findings and conclusions as well as the March 24 order. Therefore, Greenshields' appeal was timely. We deny Hargis-Greenshields' motion to dismiss.
RAP 2.4.
DENIAL OF MOTION FOR MODIFICATION
Greenshields contends that the trial court erred in refusing to reconsider his motion for minor modification after the court found a substantial change in circumstances. `Procedures relating to the modification of a decree of dissolution are statutorily prescribed' [and] compliance with these criteria is mandatory. Greenshields sought a minor modification under RCW 26.09.260(5)(a). This statute provides that
In re Marriage of Stern, 57 Wn. App. 707, 711, 789 P.2d 807 (1990).
The court may order adjustments to the residential aspects of a parenting plan upon a showing of a substantial change in circumstances of either parent or of the child, if the proposed modification is only a minor modification in the residential schedule that does not change the residence the child is scheduled to reside in the majority of the time and:
Does not exceed twenty-four full days in a calendar year.
In order to obtain a hearing on an order modifying an existing parenting plan, a parent must present with his motion affidavits showing adequate cause for such a hearing. Adequate cause requires `something more than prima facie allegations which, if proven, might permit inferences sufficient to establish grounds for a custody change.' RCW 26.09.270 states:
RCW 26.09.270; In re Parentage of Jannot, 149 Wn.2d 123, 124, 65 P.3d 664 (2003).
In re Marriage of Roorda, 25 Wn. App. 849, 852, 611 P.2d 794 (1980).
The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, in which case it shall set a date for hearing.
A trial court's determination regarding adequate cause will be overturned only for an abuse of discretion.
Jannot, 149 Wn.2d at 126-27.
At the March hearing, the trial court entered an order as to after school care even though it found that Greenshields had not established adequate cause. Then, at the end of the April hearing, the trial court found a substantial change in circumstances based on: (1) the change in Hargis-Greenshields' employment; (2) the conflicts that emerged after the change in Hargis-Greenfields' employment and the disagreement over restarting the weekend schedule after winter break; and (3) the parents' agreement that these conflicts harmed the child. Greenshields had asserted these facts in his declaration supporting his motion, and Hargis-Greenshields does not challenge this finding of fact on appeal.
Hargis-Greenshields' attorney admitted that the conflict was two-fold at the April hearing when he acknowledged that it grew out of a disagreement over after school care as well as the resumption of the weekend schedule after winter break. But the issue of after-school care was raised by Greenshields' motion for minor modification, which was controlled by RCW 26.09.260 and .270. And, as set out above, even though the trial court had denied Greenshields' motion and then addressed it in the March order, under CR 54(b) the March order was not final and was subject to revision at the April hearing. Further, Greenshields objected to the judge's limitation of consideration to Hargis-Greenshields' motion after the judge found a substantial change in circumstances. Once the trial judge made the finding of a substantial change in circumstances, the statute required her to set Greenshields' motion for minor modification for a hearing. There was no discretion to do otherwise in view of the mandatory provisions of the statute.
We reverse the order dismissing Greenshields' motion for minor modification and remand for trial.
COX, ELLINGTON and SCHINDLER, JJ.